Attachments and Executions
Attachments, of course, are pre-trial liens that stand to secure any judgment that the plaintiff might be awarded; executions are liens which result from the judgment and permit the sheriff to take action and sell property that is subject to the lien. There is an important connection between attachments and executions. In order for there to be "continuity" between the execution and the attachment, such that the execution will "relate back" to the time of the attachment and succeed to its priority over intervening encumbrances, certain time limits must be observed to keep the attachment in force.
First, of course, if the trial is a protracted one, or is delayed, it is important to observe the requirements of refilling (extending) the attachment under G.L.c. 223, §114A. This means foiling the appropriate request with the register of deeds within the six-year life of the attachment so as to allow the lien to continue thereafter.
Other time limitations that must be observed carefully revolve around the timing of taking action on the execution in order to either prevent the pre-trial attachment from expiring (if there was one) or permit the execution to stand arise as a lien on its own. In this regard there are two important statutes that must be reviewed.
G.L.c. 223, §59: Upon judgment for the plaintiff in a civil action, property which has been attached in connection with said action shall remain subject to attachment for thirty days after the date which appears on the execution issued upon such judgment pursuant to chapter two hundred and thirty-five, unless sooner dissolved.
G.L.c. 236, §4: If land, which was not attached on mesne process in the action in which the execution issued, is taken on execution, the officer shall forthwith deposit in the registry of deeds for the county or district where the land lies a copy of the execution with a memorandum thereon that the execution is in his hands for the purpose of taking the land of the defendant, and no such taking shall be valid against a purchaser in good faith, for value and without notice, before such copy is deposited. If land was attached on mesne process, a copy of the execution with a memorandum as aforesaid shall be deposited by the officer in the registry of deeds for the county or district where the land lies, within forty days after the date which appears on the execution issued upon the judgment in the action, and the attachment shall become void forty days after said date unless the copy is so deposited
The first apparent conflict between the two statutes is the reference to "thirty" days in G.L.c. 223, §59 and "forty" days in G.L.c. 236, §4. But this apparent conflict was discussed and explained in McGrath v. Worcester County National Bank, 3 Mass.App.Ct. 599, 338 N.E.2d 361 (1975). In McGrath it was necessary for the plaintiff to establish that its attachment recorded on May 20, 1969 had not become void, so that it could demonstrate that its execution, which was recorded on July 16, 1973 would relate back to the time of the recording of the attachment and thereby take priority over the defendant's attachment that was recorded on June 2, 1969. The court noted that G.L.c. 223, §59 requires that land which has been attached shall be held by the sheriff for thirty days after judgment for the plaintiff so that it can be taken on execution during that time. The court noted, however, that the attachment had become void because the sheriff levied on the execution (i.e., made his notation on the writ) on July 16, 1973, according to the memorandum attached thereto—thirty-four days after judgment for the plaintiff. But the forty-day period had not yet expired by then. The court then explained the relationship between the two statutes:
The thirty-day period referred to in G.L. c. 223, §59, is one during which the attached property "shall be held . . . so that it may be taken on execution" (emphasis supplied). It has long been held under §59 and its predecessors that an attachment not levied upon within that period is automatically dissolved. (Citations omitted.) By contrast, the forty-day period in G.L. c. 236, §4, refers to the time during which a copy of the execution must be "deposited by the officer in the registry of deeds" after the judgment. There is no inconsistency. The two statutes are directed at two different acts to be performed by the officer in order to preserve the lien. Both statutes must be complied with or the attachment is lost.
The "two different acts to be performed by the officer" as mentioned in McGrath are (i) making the notation on the execution that the sheriff has levied and (ii) the recording of the execution with the aforementioned notation on it. The holding in McGrath was limited to the question of the status of the previously recorded attachment. The statutes referenced in McGrath clearly indicate that the attachment in that case had become void and that the later-recorded execution did not relate back to it, even though recorded within the forty-day period.
The decision in McGrath concerned the relation back of an execution where there had been a prior attachment. The McGrath court explored and explained the connection between G.L.c. 223, §59 and the second sentence of G.L.c. 236, §4. In contrast, the decision in Still Associates, Inc. v. Porter, 24 Mass.App.Ct. 26, 508 N.E.2d 621 (1987) dealt with the application of the first sentence of G.L.c. 236, §4, the situation where there was no pre-trial attachment. The decision in this case—which incidentally, was withdrawn and then later republished—originally held (before it was withdrawn) that the requirements of G.L.c. 236, §4 that the execution be recorded "forthwith" would not be satisfied if the execution was recorded more than forty days after its date. In its original decision, the court said:
We reject [the] construction [that the statute is drafted solely for the purpose of protecting bona fide purchasers] for a number of reasons. The time requirements for recording serve purposes other than protecting bona fide purchasers. They assure the credibility of the land records maintained at the Registry of Deeds, minimize the extent to which real property may be tied up for uncertain and indefinite periods and, to some extent, protect a debtor's interest in the property.
This language does not appear in the republished opinion, wherein the court simply states:
FDIC's execution issued on November 23, 1977, and was valid for twenty years from the date of judgment. G.L.c. 235, §23. The property was "taken on execution" no earlier than January 6, 1978 [forty-four days after the date of the judgment]. On that date FDIC placed the execution in the hands of a deputy sheriff who "forthwith" (footnote omitted) recorded the necessary documents * * * Thus, the requirements of the first sentence of G.L.c. 236, §4 were met.
It seems clear, based on the republished opinion in Still Associates, Inc., that the length of time that expires between the date on the execution and its recording is irrelevant. It seems that the requirement of the "forthwith" recording of the execution runs from the time that the sheriff receives it. And, with the deletion of the language from the republished opinion that had previously appeared in the decision as originally issued, it would appear from Still Associates, Inc., as republished, that the failure to record as such has no effect on the status of the execution, once recorded, provided that neither other parties have intervened or the twenty-year period of the judgment has expired. Assuming that no intervening interests have arisen, the late recording of the sheriff's deed would be of no import. In this regard, the court seems to have recognized and adopted the opinion in Owen v. Neveau, 128 Mass. 427 (1880) wherein the court said that the section was intended for the protection of bona fide purchasers and attaching creditors, and that it was not a prerequisite to the vesting of title in the purchaser at the sheriff's sale that the deed should be recorded within the time specified in the statute.
1 The defendant was also the purchaser in connection with the plaintiff's execution sale and argued that the late-recording of the plaintiff's execution resulted in the plaintiff's attachment losing priority, creating the situation where the plaintiff could not deliver a title free and clear of encumbrances, namely that embodied in defendant's own attachment. The thrust of the defendant's argument, of course, was to demonstrate that it was now in a priority position. [Back to Text]
2 Note that in McGrath the time period was measured from the date of the judgment. The statute was changed in to require the period to be measured from the date of the execution. [Back to Text]
3 In Still Associates, Inc. the sheriff, although receiving the execution after the expiration of the forty-day period, recorded it on the same day it was delivered to him. [Back to Text]